of conspiracy was employed for the redress of prosecutions below the grade of felony; and then it came to be considered unnecessary, in such an action, to establish an actual combination, notwithstanding the allegation of conspiracy. The law, however, relating to prosecutions for felony remained as before, and the plaintiff failed if the evidence showed that the prosecution was instituted or procured by but one person.1

1

This distinction, however, has in modern times become obsolete. An action for an alleged conspiracy can now be maintained in any case otherwise proper, though the plaintiff be unable to prove that the unlawful act complained of was undertaken by more than one person.2 The result is, that conspiracy as a ground of civil liability has nearly disappeared from the law, leaving little else than a phase of agency. The existence, then, of an actual conspiracy being unnecessary to the plaintiff's action, nothing remains, if he prove against but one person, except that which would be the ground of action against that person had he been alone sued. The case would then be nothing more than an action for deceit, malicious prosecution, false imprisonment, or other like tort, according to the nature of the wrong actually provable.

But it would hardly be satisfactory to leave the subject here. If it be said of conspiracy, as it may be, that it is no longer a cause of civil redress even when damage has

1 See upon this subject the historical notes on malicious prosecution and conspiracy, in the author's Leading Cases on Torts, pp. 190196, 210-214.

2 Savill v. Roberts, 1 Lord Raym. 374, 379; 1 Saund. 230, note; Parker v. Huntington, 2 Gray, 124; Hutchins v. Hutchins, 7 Hill, 104; Cases, 76. See Mogul Steamship Co. v. McGregor, 21 Q. B. D. 544; s. c. 23 Q. B. Div. 598.

The case is different with criminal liability; that remains a great branch of the law.

4 See e. g. Page v. Parker, 43 N. H. 363.

followed, it may be answered that the same is true of malice generally; nor is fraud alone a cause of action. And though conspiracy may not be an element of liability in the same sense that either of these may be, still there are cases where the defendant's liability turns wholly upon the question of the existence of a conspiracy and his participation therein. It may become important then to know whether in a particular case there has been a conspiracy.

1

There are, indeed, three phases of the subject which make it important to consider conspiracy in a book on torts. First, the plaintiff may have so stated his case against a defendant, who did not in fact participate in the doing of the harm complained of, as to be unable to recover with evidence of anything, such as an ordinary agency, short of conspiracy; the existence of a conspiracy has then become an element of his case. Secondly, the case may be such that no damage could be inflicted, in the nature of things, without an unlawful combination. Thirdly, it may be that in a case turning on malice, e. g. a case of malicious prosecution, the only means of proving the malice is to prove a conspiracy.

§ 2. OF MALICE AND THE COMBINATION.

In the sense of the existing law, a conspiracy is simply a confederacy or combination of two or more persons to do an unlawful act, or to do a lawful act in an unlawful The wrong is a phase of malice; the conspiracy itself constituting, or at least forming evidence of, the malice alleged by the plaintiff.3

manner.

To make a party liable with others for a conspiracy re

1 See Gregory v. Brunswick, 6 Man. & G. 953, 959.

2 Id.; Mogul Steamship Co. v. McGregor, 1892, A. C. 25, 60.

Id. 205, 953.

sulting in damage, he must either have originally colluded with the rest, or afterwards joined them as an associate, or actually participated in the execution of the scheme, or afterwards adopted it. A defendant cannot be found guilty by evidence of mere silent observation, even with approval, of the conspiracy. For example: The defendant is shown to have been cognizant of, and to have (silently) approved, the unlawful enticing away of the plaintiff's daughter. This is not sufficient to establish a conspiracy and breach of duty; the defendant not having thereby become a party to the plot.1

But it matters not, where the object of the unlawful combination is plunder and gain to the conspirators, that some of them derive no benefit from the execution of the scheme. They are equally liable, though the overt acts were committed by others who refused to divide, or failed to obtain, the spoil. For example: Several agents, of whom the defendant is one, conspire to injure their common principal, and succeed; the defendant is liable though he derives no benefit from the success.2

It is equally well settled that though there was no intention of making a profit out of the scheme, but only a desire to harass and inflict loss upon the plaintiff, the action is maintainable. For example: The defendant, an attorney, knowing that his client has no just claim against the plaintiff, maliciously and without probable cause, procures, in concert with his client, an arrest and civil prosecution of the plaintiff. The defendant is liable for the damage sustained by the plaintiff.3

Again, as has already been suggested, there may be cases in which the wrong could not be done without an unlawful combination; in such a case proof of conspiracy

4

1 Brannock v. Bouldin, 4 Ired. 61.

2 Walsham v. Stainton, 1 De G. J. & S. 678.

8 Stockley v. Hornidge, 8 Car. & P. 11.

+ Mogul Steamship Co. v. McGregor, 1892, A. C. 25, 60; Cases, 80, 93, 99; Lambton v. Mellish, 1894, 3 Ch. 163.

must, it seems, be made. Thus, one man alone could hardly succeed in hissing an actor off the stage; and though others might join him, there would probably be no redress, however unjust the act. But preconcert would make a different case. For example: The defendant and others conspire to prevent the plaintiff, an actor, from performing at a theatre, and, in pursuance of the conspiracy, employ others to go to the theatre and interrupt the plaintiff in his part, and the plan is carried out, to the damage of the plaintiff. The defendant is liable.1

2

§ 3. OF DAmage.

It is of the essence of liability for conspiracy, when conspiracy is made a ground of civil action, that it cause damage. For example: The defendants are alleged to have conspired together, maliciously and without probable cause, to institute, and then to have instituted, an action against the present plaintiff in the name of a third person, for their benefit. No damage is alleged. The plaintiff cannot recover. Again: The defendants conspire successfully, by false representations, to induce the plaintiff's father to revoke his will in favor of the plaintiff. The plaintiff sustains no damage in contemplation of law, as no legal right of the plaintiff was infringed.*

3

1 Gregory v. Brunswick, 6 Man. & G. 205, 953. Steamship Co. v. McGregor, 1892, A. C. sell, 1893, 1 Q. B. 715, 729.

See also Mogul

25, 45; Temperton v. Rus

2 Cotterell v. Jones, 11 C. B. 713; Hutchins v. Hutchins, 7 Hill, 104; s. c. L. C. Torts, 207; Place v. Minster, 65 N. Y. 89; Kimball v. Harman, 34 Md. 407. But not if the action would lie against one of the defendants without proving damage.

8 Cotterell v. Jones, supra.

4. Hutchins v. Hutchins, supra; ante, pp. 12, 13.

CHAPTER IV.

MALICIOUS INTERFERENCE WITH CONTRACT.

§ 1. INTRODUCTORY.

Statement of the duty. A owes to B the duty to forbear to induce, maliciously, C to break a contract between B and C, or to refuse to enter intc contract with B, to B's damage.

§ 2. OF MALICE.

2

The subject of malicious interference with the contracts of others, causing a breach of them, is a tort of but recent distinct and settled recognition. To entice away a servant from his master has been wrongful from early times; but that, in England, is a statutory doctrine, peculiar, probably, to the case of servants who labor with their hands. In such cases it is perhaps not necessary, in England, that the act of the defendant should have been malicious, further than that it was done with notice of the relation of master and servant. This is true also in America, as a matter of the American common law.*

1 See Lumley v. Gye, 2 El. & B. 216; s. c. L. C. Torts, 306. This case is an epitome of the history of the whole subject. See especially the dissenting opinion of Mr. Justice Coleridge.

2 Statute of Laborers, 23 Edw. 3.

8 Wightman, J. in Lumley v. Gye; Bowen v. Hall, 6 Q. B. Div. 333. See Mogul Steamship Co. v. McGregor, 21 Q. B. D. 544 ; s. c. 23 Q. B. Div. 598; 1892, A. C. 25; Cases, 80. But see Walker v.

Cronin, 107 Mass. 555, 567; Cases, 102.

4 Walker v. Cronin, supra, journeymen shoemakers.